S.A.No.470 of 2005
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 07.02.2020
Date of Verdict : 05.03.2020
CORAM
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
S.A.No.470 of 2005 and
CMP.No.7519 of 2005
1.Lakshmi Ammal(died)
2.Thara Bai
(2nd Appellant brought on record as LR
of the deceased sole appellant vide
court order dated 16.11.2018 made
in CMP.No.10714 to 10716 of 2016
in SA.No.470 of 2005) …Appellants
Vs.
1.Mari Ammal
2.B.Muthu …Respondents
Prayer :- This Second Appeal is filed under Section 100 of Civil Procedure
Code against the judgment and decree dated 11.12.2003, in A.S.No.18 of
2000 on the file of I Additional Judge, City Civil Court, Chennai confirming the
decree and judgment dated 27.10.1998 in O.S.No.4992 of 1993 on the file of
III Assistant Judge, City Civil Court, Chennai.
For Appellants : Mr.G.Ilangovan
For Respondents
For R1 : Mr.S.Sundaresan
for Mr.C.Pattabiraman
R2 : Notice served
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JUDGMENT
This second appeal is directed as against the judgment and
decree dated 11.12.2003, in A.S.No.18 of 2000 on the file of I Additional
Judge, City Civil Court, Chennai confirming the decree and judgment dated
27.10.1998 in O.S.No.4992 of 1993 on the file of III Assistant Judge, City
Civil Court, Chennai.
2. For the sake of convenience, the parties are referred to as per
their rankings in the trial Court.
3. The case of the plaintiff in brief is as follows :-
3.1. The suit is filed for declaration and permanent injunction with
the alternative prayer for recovery of possession. The suit property was
originally purchased by the plaintiff’s husband, the first defendant herein
from one, Thiyagarajan by registered sale deed dated 27.08.1980.
Thereafter he settled the suit property in favour of the plaintiff by the
registered settlement deed dated 17.10.1984. The plaintiff took
possession and was enjoying the suit property as absolute owner. While
being so, there was misunderstanding between the plaintiff and the first
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defendant and as such she was driven out from the suit property. The
first defendant filed petition for divorce in MOP.No.331 of 1987 on the file
of the VII Assistant Civil Civil Judge, Chennai and the same was dismissed.
The first defendant without knowledge of the plaintiff created fraudulent
cancellation deed dated 28.09.1987, thereby cancelled the settlement
deed executed in favour of the plaintiff. The plaintiff after came to
knowledge about the same, caused public notice in tamil dailies on
10.11.1987, thereby put on notice to prospective purchaser and to general
public at large to ascertain her title over the suit property. Therefore, the
first defendant did not retain any right over the suit property after the
settlement deed dated 17.10.1984 to alienate the same. Thereafter, the
first defendant did not care to pay any maintenance as ordered by the City
Civil Court in IA.No.22350 of 1987 in MOP.No.331 of 1987, the plaintiff
filed execution petition in EP.No.1878 of 1988 and she was able to realise
a sum of Rs.1000/- alone. As such again the plaintiff filed suit for
recovery of arrears of maintenance in O.S.No.19 of 1990 on the file of the
Family Court, Chennai and the same was also decreed in her favour.
3.2 Further she stated that while being so, the plaintiff came to
understand that the first defendant executed sale deed in favour of the
second defendant in respect of the suit property by the registered sale
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deed dated 01.11.1989. In fact, the said sale deed was executed by the
first defendant as though the plaintiff has also joined with him in the said
conveyance. The plaintiff was impersonated in the said transaction and
the first defendant committed very serious offence of forgery and
impersonation. In fact, the first defendant categorically stated in the
divorce petition that the plaintiff deserted the first defendant on
31.10.1985 itself and as such there is absolutely no possibility for the
plaintiff to join with the first defendant in conveying the suit property in
favour of the second defendant. The plaintiff was impersonated and her
signature was forged by the first defendant and executed sale deed in
favour of the second defendant and as such the sale deed itself is void ab
initio and it is not binding on the plaintiff. Hence, the suit for declaration
declaring that the plaintiff is having absolute right, title, interest over the
suit property and also prayed for permanent injunction with alternative
prayer of recovery of possession.
4. Resisting the plaintiff’s case, the second defendant alone filed
written statement stating that the suit itself is not maintainable either in
law or on facts and it is barred by limitation and without jurisdiction. The
suit was filed with collusion of the first defendant to nullify the sale deed
executed in favour of the second defendant. She further submitted that
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she is the bonafide purchaser for valuable sale consideration. She did not
know about the fraud played on her till receipt of summon from the suit.
When the first defendant offered to sell the suit property, she approached
him and verified all the original documents. While verifying those
documents, she also found that the first defendant already executed
settlement deed in favour of the plaintiff by the settlement deed dated
17.10.1984 and thereafter it was cancelled by the cancellation of
settlement deed dated 28.09.1987 and it was duly registered. It is also
reflected in the encumbrance certificate. While receipt of the legal opinion
to purchase the suit property, she was advised to get a sale deed to be
executed by settlee also, in which the first defendant also agreed.
Thereafter she agreed to buy the suit property for the sale consideration
of Rs.59,000/- and also paid a sum of Rs.10,000/- as advance.
4.1 Further stated that the first defendant also ensured that the
settlement deed was not acted upon and also invited the second
defendant along with her daughter to his house and when they visited the
first defendant’s house, she was introduced one lady as Mariammal and as
such at no point of time, there was any suspicion raised over the minds of
the second defendant as well as her daughter. Believing all these
representations by the first defendant and also in good faith, the second
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defendant purchased the suit property on 01.11.1989. In fact, the first
defendant also assured that he will bring his wife Mariammal for
registration. Accordingly, on 01.11.1989, the second defendant went to
the Registrar Office along with her daughter and son in law. The first
defendant along with his wife came to the Registrar’s Office and after
receipt of balance sale consideration, the first defendant and his wife
executed sale deed in favour of the second defendant. Therefore, there is
no question of fraudulent sale deed and fraudulent cancellation of
settlement deed dated 28.09.1987. The second defendant was never
aware of the fact that the plaintiff was impersonated and her signature
was forged while executing the sale deed and as such the said sale deed
cannot be void ab initio. The recital of the settlement deed shows that the
said document is sham and nominal and which has not been acted upon
by either of the parties at any point of time. Further the plaintiff was
never in possession and she was never allowed to put in possession of the
suit property. Even according to her, she was driven out from the suit
property in the middle of the year 1985 itself. Therefore, the plaintiff
approached the Court with unclean hands and she is not entitled for any
relief as prayed for and prayed for dismissal of the suit.
5. In support of the plaintiff’s case, P.W.1 and P.W.2 were
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examined and ten documents were marked as Ex.A.1 to Ex.A.10. On the
side of the defendants, D.W.1 and D.W.2 were examined and Ex.B.1 to
Ex.B.9 were marked. On considering the oral and documentary evidences
adduced by the respective parties and the submission made by the
learned counsel, the trial Court decreed the suit in favour of the plaintiff.
Aggrieved over the judgment and decree of the trial Court, the second
defendant preferred an appeal suit in A.S.No.18 of 2000 before the I
Additional Judge, City Civil Court, Chennai. The first appellate Court on
appreciating the materials placed on records, dismissed the appeal by
confirming the judgment and decree passed by the trial Court. Challenging
the same, the second defendant has come forward with the present
second appeal.
6. At the time of admission of the second appeal, the following
substantial questions of law were framed :-
a) Whether the suit is barred by law of
limitation especially under Article 59 of Limitation
Act?
b) Whether the Exhibit B-2 the settlement
deed is properly construed to arrive at a
conclusion regarding validity?
c) Whether the Exhibit B-2 was acted upon
and brought into existence?
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d) Whether the Exhibit B-2 was cancelled
properly and whether it is legal and sustainable in
law?
e) Whether any cause of action arose for
the suit to be filed?
f) Whether the Exhibit B-4 is valid
document?
g) Whether the Exhibit B-2 is a document in
presenti?
h) Whether the oral and documentary
evidence were properly appreciated?
i) Whether the pleadings and oral evidence
properly appreciated?
j) Whether Principles laid down in Sections
122 123 of Transfer of Property Act were
properly applied?
k) Whether Section 43, 58 to 60 Indian
Evidence Act are properly appreciated?
7. The learned counsel appearing for the second defendant has
contended as follows:
(a) The relief of permanent injunction and relief of recovery of
possession are quite contradictory with each other and the same are
destructive to one another. When the plaintiff herself categorically
averred in the plaint that the suit property was settled in her favour by the
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first defendant by the settlement deed dated 17.10.1984 and immediately
she took possession of the suit property. Thereafter in the middle of the
year 1985, she was driven out from the suit property. When it being so,
she cannot pray for both prayers injunction and also recovery of
possession. Even then, she did not give up her stand, when she is not in
possession of the property.
(b) He further submitted that the suit is hit by Section 34 of the
Specific Relief Act as the plaintiff omitted to seek the relief of nullifying the
cancellation of settlement deed and the sale deed by way of declaration.
She also knows about the cancellation of settlement deed and the sale
deed executed in favour of the second defendant by the first defendant
and as such she ought to have challenged those deeds in the manner
known to law.
(c )It is also hit by Section 31 of Specific Relief Act as the plaintiff
failed to seek cancellation of revocation of settlement deed and the sale
deed which was marked as Ex.B.3 and Ex.B.4. When there is no plea in
the plaint or issues framed by the trial court with regards to revocation of
settlement deed Ex.B.3 and sale deed executed in favour of the second
defendant Ex.B.4, the trial court erred in holding that Ex.B.3 is invalid.
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(d) The suit itself is barred by limitation under Articles 58 and 59 of
the Limitation Act and even then the courts below held that Ex.B.3 and
Ex.B.4 are void and not binding on the plaintiff. Since the plaintiff failed
to challenge Ex.B.3 and Ex.B.4, because already time barred and even
then the courts below hold that both the documents are void. Ex.B.2
settlement deed is not at all valid, since it was never acted upon.
Admittedly, the plaintiff was driven out from the suit property by the first
defendant in the middle of the year 1985 itself. Further she also failed to
prove her possession and enjoyment of the suit property after the
settlement deed executed in her favour. The settlement deed does not
confer any right or title to the plaintiff. When it being so, without any
right, title over the suit property, the plaintiff cannot ask for any prayer for
declaration in respect of the suit property.
(e) Both the courts below failed to apply the provisions
contemplated under Sections 122 and 126 of the Transfer of Property Act.
Normally, the gift deed to be executed on love and affection. Whereas
the recital of the Ex.B.3 revocation of settlement deed would show that
the plaintiff did not render duties and did not show any love and affection
as a wife to the first defendant. Therefore, the reason for revocation of
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the gift deed is justified as the plaintiff has chosen to withdraw her
conjugal duties and love and affection towards the first defendant. In
view of Section 126 of Transfer of Property Act, the cancellation of
settlement deed is valid and the first defendant did not require to get any
consent from the plaintiff being the beneficiary.
(f) The sale deed executed in favour of the second defendant by the
first defendant which was marked as Ex.B.4 is a valid one, since the
second defendant is a bonafide purchaser for valid sale consideration.
The sale deed was executed by the first defendant as well as the plaintiff
and as such it is valid under law. The plaintiff made bald allegations that
she was impersonated and her signature was forged while executing the
sale deed, when she did not even plead the same and she failed to prove
the said allegations before the trial court. Therefore, Ex.B.4 sale deed is a
valid document and the second defendant is the bonafide purchaser. Both
the courts below erred in holding that Ex.B.4 is void without applying the
principles contemplated under Section 73 of the Indian Evidence Act.
Section 73 of the Indian Evidence Act mandates the procedure to be
followed in comparison of signatures in a case of forgery or disputing the
signature. The signatures shall not be compared by the court itself with
the disputed signature without sending the same for expert opinion.
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Unfortunately the trial court without complying the said principles
contemplated under Section 73 of the Evidence Act, erroneously found
that the sale deed was forged only for the reason that the judgment
rendered by the criminal court, which was marked as Ex.A.11. On the
complaint lodged by the plaintiff, a case has been registered as against
the first defendant and during trial, the trial court without even taking
specimen signature from the plaintiff and with the photos of signatures of
the plaintiff taken from the court records, conducted trial. Therefore, the
procedure contemplated under Section 73 of the Indian Evidence Act is
totally violated. In fact, both the courts below compared the signatures of
the plaintiff with the plaint and vakalat nama with the disputed signatures
appeared in the sale deed executed and concluded the same as forged
one. Both the courts below considered the findings of the criminal court,
which was marked as Ex.A.11 and concluded that the plaintiff has not
signed the sale deed Ex.B.4 and she was impersonated. The judgment or
findings of the criminal court shall not be admissible in a civil case. The
civil court can decide the case only on the basis of evidence adduced
before the civil court and prayed to allow the second appeal.
7.1 The learned counsel for the second defendant, in support of
his contention, relied upon the following judgments:
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(i) C.R.Umapathy and others Vs.
D.Sathyanarayana Chettiar and others reported in 2015
(1) CTC 398
(ii) Arundhati Mishra Vs. Sri Ram Charita Pandey
reported in 1994 (2) SCC 29
(iii) Suhrid Singh alias Sardool singh Vs. Randhir
Singh and others reported in (2010) 12 SCC 112
(iv) MD.Noorul Hoda Vs. Bibi Raifunnisa and
Others reported in (1996) 7 SCC 767,
(v) State of Orissa Vs. Rajendra Prasad Bharadia
reported in 1994 SCC (5) 146
(iv) Latif Estate Line India Ltd., rep by its
Managing Director, Mr.Habib Abdul Latif Vs. Hadeeja
Ammal and two others reported in 2011 (2) CTC 1
(v) Seth Ramdayal Jat Vs. Laxmi Prasad reported in
(2009) 11 SCC 545
(vi) Vishnu Dutt Sharma Vs. Daya Sapra (SMT) reported
in (2009) 13 SCC 729
(vii) Syed Askari Hadi Ali Augustine Imam and
another Vs. State (Delhi Administration) and another
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reported in (2009) 5 SCC 528
(viii) Ammasai Gounder Vs. Pavayammal and
others reporte in 2020 (1) CTC 205
8. Per contra, the learned counsel for the plaintiff submitted as
follows:
(a) Both the courts concurrently held in favour of the plaintiff and
as such this Court should not interfere with the findings of the courts
below and it is against the power under Section 100 of CPC. The
substantial questions of law formulated by this Court while admitting the
second appeal and the additional substantial questions of law raised
during the course of arguments by the second defendant did not support
the case of the appellant and as such the second appeal fails and liable to
be dismissed.
(b) He further contended that on perusal of the settlement deed
dated 17.10.1984 clearly discarded the case of the second defendant,
since she was put in possession and enjoyment of the suit property
immediately after execution of the settlement deed. Though under the
settlement deed, life estate alone has been given to the plaintiff, the
entire right of sale has not been completely taken away and it is restricted
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to the extent that in the event of any necessity she should join with the
first defendant. The first defendant has no right to revoke the settlement
deed since there is no right reserved to revoke the settlement deed as
enunciated under Section 126 of the Transfer of Property Act.
(c). He further submitted that the second defendant cannot
question the same, since she is the subsequent purchaser and she is not
competent to speak about the same. In fact, the first defendant did not
come forward to defend his case or the second defendant’s case and he
remained ex parte. Though the second defendant filed written statement,
she did not come forward to depose before the trial court. Therefore,
evidence of DW1 and DW2 are not at all useful to the pleadings of the
second defendant. The settlement deed cannot be cancelled immediately
after and in the absence of any power for revocation reserved and the
deed itself is against public policy to register the cancellation of such
settlement deed.
(d) He further submitted that this Court as well as the Hon’ble
Supreme Court of India repeatedly saying that the person who is seeking
to cancel the settlement deed has to approach the civil court to have the
settlement deed set aside and not by unilateral cancellation. It is no
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longer res integra and the courts have categorically held that unilateral
cancellation is bad. Ex.B.4 was executed by the first defendant and one,
Mariammal witnessed by two witnesses identified before the Sub Registrar
the person who executed the sale deed. The plaintiff was driven out from
the suit property by the first defendant in the year 1985, which resulted in
matrimonial proceedings. Thereafter she also caused public notice on
tamil daily, wherein she ascertained her right, title and possession over
the property. Therefore, the sale deed executed in favour of the second
defendant is not at all valid one and both the courts rightly held that it is
void.
(e) Further, the first defendant had no title over the property to
execute any sale deed in favour of the second defendant. That apart, the
plaintiff was impersonated and her signatures were forged and executed
sale deed in favour of the second defendant and as such it is void ab initio
and the same is not binding on the plaintiff. In fact, the second
defendant, after verification of encumbrance certificate, purchased the suit
property and in the encumbrance certificate she found already there was a
settlement deed dated 17.10.1984 and also cancellation of settlement
deed dated 28.09.1987. Therefore, she was advised to have execution by
the settlee namely the plaintiff herein. Accordingly, she also executed sale
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deed in her favour. When it was legally barred to cancel the settlement
deed, that too unilaterally the second defendant ought not to have
purchased the same, when the settlement deed was not cancelled by the
civil court.
(f) He further submitted that when the plaintiff categorically
stated that she was impersonated and her signatures were forged and
executed sale deed in favour of the second defendant, she has to enter
into box and let in evidence that the plaintiff was very much present
before the Registrar Office and executed sale deed in her favour. But the
second defendant never entered into box and deposed. The Registrar has
to enquire before registration under Rules 54 and 55 of Registration Act
and there is no such certificate found in the document. The Registrar also
not endorsed that the sale consideration was passed and the first
defendant and the plaintiff were present. Impersonation and forgery were
proved by the criminal court against the first defendant and he was
convicted and sentenced to imprisonment. Therefore, it is categorically
proved that the sale deed itself is void and the suit property is liable to be
declared in favour of the plaintiff and prayed for dismissal of the second
appeal.
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9. The learned counsel for the plaintiff, in support of his
contentions, relied upon the following judgments:
(i) B.K.Rangachari and Ors. Vs. L.V.Mohan reported
in 2015 (2) CTC 465.
(ii) K.A.Shanmugam and Ors. Vs. Tamilarasi and
Ors. reported in 2011 (6) CTC 42, and
(iii) Kondiba Dagadu Kadam Vs. Savitribai Sopan
Gujar and Ors. reported in AIR 1999 SC 2213.
10. Heard Mr.G.Ilangovan, learned counsel appearing for the
second defendant, and Mr.S.Sundaresan, learned counsel appearing for
the plaintiff.
11. This Court considered the rival submissions made by the
learned counsel on either side, and the principles of law outlined in the
above said positions are taken into consideration and followed as
applicable to the case on hand.
12. The plaintiff got married the first defendant. The first
defendant purchased the suit property by the registered sale deed dated
27.08.1980 from one, Thiyagarajan and thereafter the said property was
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settled in favour of the plaintiff by the registered settlement deed dated
17.10.1984. There was misunderstanding between the plaintiff and the
first defendant and as such she was driven out from the matrimonial
home. The first defendant filed divorce petition in MOP.No.331 of 1987, in
which the plaintiff filed I.A.No.22350 of 1987 seeking interim maintenance
and ordered maintenance. Due to non compliance of the order passed in
I.A.No.22350 of 1987, the divorce petition was dismissed. Therefore, the
first defendant cancelled the settlement deed by the deed dated
28.09.1987. Thereafter, the first defendant offered to sell the suit
property which was settled in favour of the plaintiff and subsequently
cancelled the settlement deed. The second defendant agreed to purchase
the suit property for total sale consideration of Rs.59,000/- and paid a
sum of Rs.10,000/- as advance to the first defendant. After verification of
document including encumbrance certificate in respect of the suit property
found that there was a settlement deed dated 17.10.1984 and
subsequently it was cancelled by the cancellation of settlement deed dated
28.09.1987. Therefore, the second defendant insisted the settlee, namely
the plaintiff herein also to execute sale deed in her favour. The first
defendant agreed for the said request and his wife Mariammal also came
to the Registrar Office and executed sale deed in favour of the second
defendant by the registered sale deed dated 01.11.1989. According to the
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second defendant, she does not know whether the first defendant
impersonated his wife, namely the plaintiff herein by another person and
forged her signature by the impersonated person. However, the first
defendant and another one Mariammal executed sale deed in her favour
witnessed by two witnesses.
13. According to the plaintiff, she never executed sale deed in
favour of the second defendant and she was impersonated and her
signatures were forged before the Registrar Office. In spite of her public
notice with regards to the ownership of the suit property that the suit
property was originally settled in her favour and without her consent and
without her knowledge, the settlement deed was cancelled unilaterally by
the first defendant. In spite of that, the sale deed was executed in favour
of the second defendant and as such both the documents are void ab
initio and it never binds the plaintiff. Therefore, she sought for declaration
of the suit property in her favour. After hearing the arguments, this Court
formulated the following additional substantial questions of law.
(a) Whether the suit is hit by Section 42 of the
Specific Relief Act as the Plaintiff omitted to seek further relief
of cancellation of Ex-B3 and Ex-B4?
(b) Whether the suit is hit by Section 31 of the
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Specific Relief Act as the Plaintiff failed to seek cancellation of
the same?
14. Both the courts below held that Ex.B3 revocation of
settlement deed and Ex.B.4 sale deed executed in favour of the second
defendant are void. The plaintiff is entitled for decree for declaration
declaring that the suit property belongs to the plaintiff by virtue of the
settlement deed executed in favour of the plaintiff Ex.B.2. Admittedly, the
plaintiff got married the first defendant and the first defendant executed
settlement deed in favour of the plaintiff, which was marked as Ex.B.2.
Due to family dispute between them, the first defendant cancelled
settlement deed by way of registered cancellation of settlement deed on
28.09.1987, which was marked as Ex.B.3. Thereafter the first defendant
sold out the suit property in favour of the second defendant by the
registered sale deed dated 01.11.1989. The said sale deed was also
executed by his wife Mariammal along with the first defendant.
Subsequently, it was disputed by the plaintiff and lodged complaint as
against the first defendant and the same was registered for the offences
of impersonation and forgery. The first defendant was convicted by the
trial court in C.C.No.11197 of 1992 and the first appellate court also
confirmed the same in the appeal. However, the second defendant
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purchased the suit property after verification of all the documents
including the encumbrance certificate and insisted the first defendant to
execute sale deed along with the settlee his wife Mariammal. The second
defendant did not know about the identity of the first defendant’s wife.
Therefore, she was under impression that the person who executed sale
deed in her favour along with the first defendant is the wife of the first
defendant. The second defendant purchased the suit property for valid
sale consideration and as such she is a bonafide purchaser of the suit
property under Ex.B.4.
15. The plaintiff filed suit for declaration declaring that the
plaintiff is having absolute right, title and interest over the suit property
and permanent injunction with the alternative prayer of recovery of
possession of the suit property. The learned counsel for the second
defendant contended that the relief of permanent injunction and the relief
of recovery of possession are quite contradictory with each other and the
same is destructive to one another. Admittedly, the settlement deed was
executed in favour of the plaintiff on 17.10.1984. In the middle of the
year 1985, due to family dispute between the plaintiff and the first
defendant, she was driven out from the matrimonial home, namely the
suit property. Thereafter, the first defendant filed divorce petition, in
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which the plaintiff also filed petition for maintenance. Subsequently she
also lodged a complaint against the first defendant for impersonating her
and also forging her signatures in the sale deed executed in favour of the
second defendant. Therefore, she was not in possession of the suit
property even from the year 1985 onwards. In this regard, the learned
counsel for the second defendant relied upon the following judgments:
(i) C.R.Umapathy and others Vs. D.Sathyanarayana Chettiar
and others reported in 2015 (1) CTC 398, wherein it is held as follows:
“12. A perusal of the said application filed by the plaintiffs
before the trial Court would show that they wanted to add the relief
of possession alone in the plaint prayer and nothing else. As rightly
pointed out by the learned counsel appearing for the respondents 3
and 4, the plaintiffs are not seeking to delete the prayer for
injunction. On the other hand, by retaining such a prayer, they
seek to introduce the prayer for possession as well. It is needless
to say that both the prayers, namely injunction and possession, do
not go together, as they are mutually opposite prayers. While
considering the pleadings of the parties, it is settled principle that
though the defendants can take contradictory pleas, the plaintiffs
should be clear in their plea and prayer in the main suit. It is not
the case of the plaintiffs that they are in possession and so they
seek injunction and in case the Court comes to the conclusion that
they are not in possession, alternatively, they are entitled for the
relief of possession. On the other hand, it is their case that they
have omitted to seek the relief of possession by over-sight.
Therefore, the question of considering the relief of possession as
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an alternative relief also does not arise. “
(ii) Arundhati Mishra Vs. Sri Ram Charita Pandey reported in
1994 (2) SCC 29, wherein it is held as follows:
“4. The question in this case is whether the plea of adverse
possession sought to be set up by the respondent could be
permitted to be raised. The pleas based on title and adverse
possession are mutually inconsistent and tile latter does not begin
to operate until the former is renounced. It is his own case that he
came into possession of the suit house in his own right and
remained in possession as an owner. The appellant is only
benamidar. Therefore, his plea is based on his own title. He never
denounced his title nor admitted the title of the appellant. He never
renounced his character as an owner asserting adverse possession
openly to the knowledge of the appellant and the appellant’s
acquiescence to it.”
16. This Court and the Hon’ble Supreme Court of India held that
the plaintiff should be clear in the plea and the prayer in the suit. The
prayer namely injunction and possession do not go together as they are
mutually opposite prayers. Therefore, the question of considering the
relief of possession as alternative relief of possession does not arise. The
plea of injunction and possession are undoubtedly destructive plea to each
other. In the case on hand, the plaintiff sought for relief of declaration
and injunction with the alternative prayer of recovery of possession. On
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S.A.No.470 of 2005perusal of the pleadings, she categorically pleaded that after dismantling
the thatches in the suit property, she has expanded and renovated the suit
house. After renovation when she was about to move into house, she was
prevented to enter into the said house, namely on 10.10.1992. Whereas
in the earlier paragraphs, it was stated that she was driven out from the
suit house in the middle of the year 1985 and since then, she has been
residing with her parents. Thereafter, the first defendant filed divorce
petition in MOP.No.331 of 1987 in the year 1987. As such, admittedly she
was not in possession and enjoyment of the suit property at the time of
filing the suit. When it being so, the plaintiff should not have prayed for
two destructive prayers, namely injunction and recovery of possession and
the above judgments squarely apply to the case on hand.
17. The plaintiff filed suit for declaration declaring that she is the
owner of the suit property without asking for nullifying the cancellation of
settlement deed Ex.B.3 and the sale deed executed in favour of the
second defendant Ex.B.4. She categorically pleaded that the settlement
deed executed in favour of her was cancelled by Ex.B.3 and subsequently,
the first defendant executed sale deed in favour of the second defendant
by Ex.B.4, that too by impersonating her and forging her signatures. She
cannot be declared without setting aside the cancellation of settlement
deed and the sale deed executed in favour of the second defendant.
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Under Section 34 of Specific Relief Act, it is imperative on the part of the
plaintiff on the basis of her pleadings in the plaint, for avoidance of
cancellation of settlement deed and the sale deed, and its nullity as
further relief as per Section 34 of the Specific Relief Act. Therefore,
without seeking such relief, the title cannot be decreed in favour of the
plaintiff. It is relevant to extract Section 34 of the Specific Relief Act as
follows:
“34. Discretion of court as to declaration of status or right.—
Any person entitled to any legal character, or to any right as to any
property, may institute a suit against any person denying, or
interested to deny, his title to such character or right, and the court
may in its discretion make therein a declaration that he is so
entitled, and the plaintiff need not in such suit ask for any further
relief: Provided that no court shall make any such declaration
where the plaintiff, being able to seek further relief than a mere
declaration of title, omits to do so.”
18. In this regard, the learned counsel for the second
defendant relied upon the judgment in the case of Suhrid Singh
alias Sardool singh Vs. Randhir Singh and others reported in
(2010) 12 SCC 112, wherein it is held as follows:
“6. Where the executant of a deed wants it to be annulled,
he has to seek cancellation of the deed. But if a non-executant
seeks annulment of a deed, he has to seek a declaration that the
deed is invalid, or non-est, or illegal or that it is not binding on him.
The difference between a prayer for cancellation and declaration in
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S.A.No.470 of 2005regard to a deed of transfer/conveyance, can be brought out by the
following illustration relating to `A’ and `B’ — two brothers. `A’
executes a sale deed in favour of `C’. Subsequently `A’ wants to
avoid the sale. `A’ has to sue for cancellation of the deed. On the
other hand, if `B’, who is not the executant of the deed, wants to
avoid it, he has to sue for a declaration that the deed executed by
`A’ is invalid/void and non- est/ illegal and he is not bound by it. In
essence both may be suing to have the deed set aside or declared
as non-binding. But the form is different and court fee is also
different. If `A’, the executant of the deed, seeks cancellation of
the deed, he has to pay ad-valorem court fee on the consideration
stated in the sale deed. If `B’, who is a non-executant, is in
possession and sues for a declaration that the deed is null or void
and does not bind him or his share, he has to merely pay a fixed
court fee of Rs. 19.50 under Article 17(iii) of Second Schedule of
the Act. But if `B’, a non- executant, is not in possession, and he
seeks not only a declaration that the sale deed is invalid, but also
the consequential relief of possession, he has to pay an ad-valorem
court fee as provided under Section 7(iv)(c) of the Act.”
19. The Hon’ble Supreme Court of India held that where the
executant of a deed want it be an annulled, he has to seek cancellation of
the deed. But if a non-executant seeks annulment of a deed, he has to
seek a declaration that the deed is invalid, or non est, or illegal or that it is
not binding on him. In the case on hand, the plaintiff did not ask for any
prayer to annul the cancellation of settlement deed and the sale deed,
namely Ex.B.3 and Ex.B.4. Section 34 of the Specific Relief Act, prima
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S.A.No.470 of 2005facie says that no court shall make any such declaration where the
plaintiff, being able to ask for other relief than a mere declaration of title,
omits to do so. Therefore, mere declaration without consequential relief
does not provide the needed relief in the suit, it would be for the plaintiff
to seek both the reliefs. The omission thereof mandates the court to
refuse to grant the declaratory relief. The plaintiff categorically pleaded
that Ex.B.3 and Ex.B.4 were executed in prejudicial to the rights of the
plaintiff and that she claimed the same as void documents.
20. As per the provision contemplated under Section 31 of the
Specific Relief Act, when the plaintiff claims any instrument is void and
affecting his rights, she must sue for adjudication of such document void
and cancelled. In this regard, the learned counsel for the second
defendant relied upon the judgment rendered by the Hon’ble Full Bench of
this Court in the case of Latif Estate Line India Ltd., rep by its
Managing Director, Mr.Habib Abdul Latif Vs. Hadeeja Ammal and
two others reported in 2011 (2) CTC 1, wherein it is held as follows:
“19. On the issue of applicability of Section 31 of the Specific
Relief Act, learned counsel relied on a Full Bench decision of the
Madras High Court reported in AIR 1960 Madras 1 and AIR 2000 AP
57. Learned counsel submitted that Section 31 is a discretionary
remedy and any person can institute a suit and not necessarily ahttp://www.judis.nic.in
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S.A.No.470 of 2005party to the instrument. If a document is considered to be void or
voidable anyone who has a legal apprehension that such
instrument, if left outstanding may cause serious injury, may sue to
get the document adjudged as void or voidable. A reading of the
provision makes it clear that a document need not necessarily be
set aside. It may be removed, if the person considers it as a source
of possible mischief.”The above case is squarely applicable to the case on hand and the plaintiff
ought to have sue for adjudication of Ex.B.3 and Ex.B.4 is nullified.
21. The plaintiff caused public notice in tamil daily on 10.11.1987,
thereby put on notice to prospective purchaser and the general public
about her right, interest and title over the suit property. It was caused
immediately after her knowledge. When it being so, Ex.B.3 stands as
obstacle in her way. Though she was not a party to the said document,
she necessary has to seek a declaration to get cancellation of settlement
deed Ex.B.3 as nullified. Whereas the plaintiff filed suit only in the year
1993, namely after period of six years from the date of her knowledge,
namely 10.11.1987 challenging the cancellation of settlement deed in the
form of declaration of her rights over the suit property. Therefore, the
suit for declaration of right, in other words to challenge as void of Ex.B.3
is clearly barred by limitation. In this regard, the learned counsel for the
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second defendant relied upon the judgment in the case of MD.Noorul
Hoda Vs. Bibi Raifunnisa and Others reported in (1996) 7 SCC 767,
wherein it is held as follows:
“The question, therefore, is as to whether Article 59 or
Article 113 of the Schedule to the Act is applicable to the fads in
this case. Article 59 of the Schedule to the Limitation Act, 1908 had
provided inter alia for suits to set aside decree obtain by fraud.
There was no specific article to set aside a decree on any other
ground. In such a case, the residuary Article 120 in Schedule III
was attracted. The present Article 59 of the Schedule to the Act will
govern any suit to set aside a decree either on fraud or any other
ground. Therefore, Article 59 would be applicable to any suit to set
aside a decree either on fraud or any other ground, it is true that
Art. 59 would be applicable if a person affected is a party to a
decree or instrument :0r a contract. There is no dispute that Article
59 would apply to set aside the instrument, decree or contract
between the inter se parties. The question is whether in case of
person claiming title through the party to the decree or instrument
or having knowledge of the instrument or decree or contract and
seeking to avoid the decree by a specific declaration, whether
Article 59 gets attracted? As stated earlier, Article 59 is a general
provision. In a suit to set aside or cancel an instrument, contract or
a decree on the ground of fraud, Article 59 is attracted. The
starting point of limitation is the date of knowledge of the alleged
fraud. When the plaintiff seeks to establish his title to the property
which cannot be established without avoiding the decree or an
instrument that stands as an insurmountable obstacle in his way
which otherwise binds him, though not a party, the plaintiff
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necessarily has to seek a declaration and have that decree,
instrument or contract cancelled or set aside or rescinded. Section
31 of the Specific Relief Act, .1963 regulates suits for cancellation
of an instrument which lays down that any person against whom a
written instrument is void or voidable and who has a reasonable
apprehension that such instrument, if left outstanding, may cause
him serious injury, can sue to have it adjudged void or voidable
and the court may in its discretion so adjudge it and order it to be
delivered or cancelled. It would thus be clear that the word ‘person’
in Section 31 of the Specific Relief Act is wide enough to
encompass person seeking derivative title from his seller. It would
therefore, be clear that if he seeks avoidance of the instrument,
decree or contract and seeks a declaration to have the decrees set
aside or cancelled he is necessarily bound to lay the suit within
three years from the date when the facts entitling the plaintiff to
have the decree set aside, first become known to him.”
The above case squarely applies to the case on hand, since the plaintiff
filed the suit after six years from the date of her knowledge about the
cancellation of settlement deed, which was marked as Ex.B.3.
22. The first defendant executed settlement deed in respect of
the suit property in favour of the plaintiff, which was marked as Ex.A.1.
Thereafter, it was cancelled by the cancellation of settlement deed, which
was marked as Ex.B.3. The recital of the cancellation of settlement deed
shows that the plaintiff did not render duties, love and affection as wife to
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S.A.No.470 of 2005
the first defendant. Therefore, the reason of revocation of gift is justified
as the plaintiff has chosen to withdraw his conjugal rights and love and
affection towards the first defendant. It is relevant to rely upon the
provisions under Sections 122 and 126 of the Transfer of Property Act,
which read as follows:
“122. “Gift” defined.—“Gift” is the transfer of certain existing
moveable or immoveable property made voluntarily and without
consideration, by one person, called the donor, to another, called
the donee, and accepted by or on behalf of the donee. Acceptance
when to be made.—Such acceptance must be made during the
lifetime of the donor and while he is still capable of giving. If the
donee dies before acceptance, the gift is void.
126. When gift may be suspended or revoked.—The donor
and donee may agree that on the happening of any specified event
which does not depend on the will of the donor a gift shall be
suspended or revoked; but a gift which the parties agree shall be
revocable wholly or in part, at the mere will of the donor, is void
wholly or in part, as the case may be. A gift may also be revoked in
any of the cases (save want or failure of consideration) in which, if
it were a contract, it might be rescinded. Save as aforesaid, a gift
cannot be revoked. Nothing contained in this section shall be
deemed to affect the rights of transferees for consideration without
notice.”
From the above provisions, the settlement deed Ex.A.1 is a gift deed
under Section 122 of the Transfer of Property Act. Section 126 of the
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Transfer of Property Act is a special provision dealing with the power of
the donor to revoke a gift deed in certain circumstances such kind of
revocation does not require the consent of the beneficiary of the gift.
In this regard, the learned counsel for the second defendant relied upon
the judgment rendered by the Hon’ble Full Bench of this Court in the case
of Latif Estate Line India Ltd., rep by its Managing Director,
Mr.Habib Abdul Latif Vs. Hadeeja Ammal and two others reported
in 2011 (2) CTC 1, wherein it is held as follows:
“44. The Bench further disagreed with the view taken by the
Full Bench of the Andhra Pradesh High Court in Yanala Malleshwari
and others Vs. Ananthula Sayamma and others, (2007) 1 CTC 97
and held as under:- (para 21) 21. With respect, I am unable to
subscribe myself to the said view taken by the majority for the
reasons which follow. Though in para 54 of the judgment, a
reference has been made to Section 32-A of the Indian Registration
Act, which was recently introduced, the learned Judge had not dealt
with the same elaborately. Nobody can have any quarrel over the
legal position that a deed of cancellation of a sale of immovable
property of value Rs.100/- and upwards, is a document which
needs compulsory registration. But the learned Judge has taken the
view that to revoke a sale or to cancel the same, the consent or
knowledge of the purchaser is not at all required. In my considered
opinion, as I have already stated, a sale being a bilateral contract,http://www.judis.nic.in
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S.A.No.470 of 2005more particularly in view of Section 32-A of the Indian Registration
Act, if to be cancelled, it should be done bilaterally by both the
parties to the sale. The learned Judge has expressed the
apprehension that if the law is so interpreted so as to hold that the
Registering Officer has power to refuse to register a cancellation
deed, then, it would render Section 126 of the Transfer of Property
Act, which enables the donor of a gift to cancel it or revoke the
same, ineffective. With respect, I am of the view, that such
apprehension has no basis. Section 126 of the Transfer of Property
Act is a special provision dealing with the power of the donor to
revoke a gift deed in certain circumstances. Such kind of revocation
does not require the consent of the beneficiary of the gift. Basically,
such a gift is not a contract in terms of the definition of contract as
found in the Indian Contract Act, since gift is a transfer made
voluntarily without consideration, whereas, a sale of an immovable
property is a contract entered into between two parties where
consideration is a since-qua-non. Therefore, revocation of a gift
deed cannot be equated to cancellation of a sale deed. Both
operate on different spheres. A reference has also been made in
the judgment to Section 23-A of the Registration Act.”In the case on hand, admittedly after execution of the settlement deed in
favour of the plaintiff by her husband the first defendant, there was a
misunderstanding between them due to their family dispute. Therefore,
they got separated and in fact, the plaintiff was driven out from the
matrimonial home by the first defendant. Only for the said reason, the
first defendant cancelled the settlement deed executed in favour of the
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S.A.No.470 of 2005plaintiff. Therefore, the cancellation of settlement deed Ex.B.3 is valid in
law in view of the provision under Section 126 of the Transfer of Property
Act as the first defendant did not require to get any consent from the
plaintiff, when she failed to render duties, love and affection as wife to the
first defendant.
23. The plaintiff contended that she never executed any sale
deed in favour of the second defendant and she was impersonated and
her signatures were forged by the first defendant and executed sale deed
in favour of the second defendant Ex.B.4. She also lodged complaint and
it culminated in conviction and sentenced the first defendant for
impersonation. On perusal of Ex.B.5, it is relevant to extract the provision
under Section 73 of the Indian Evidence Act as follows:
“73. Comparison of signature, writing or seal with others
admitted or proved.—In order to ascertain whether a signature,
writing or seal is that of the person by whom it purports to have
been written or made, any signature, writing, or seal admitted or
proved to the satisfaction of the Court to have been written or
made by that person may be compared with the one which is to be
proved, although that signature, writing, or seal has not been
produced or proved for any other purpose. The Court may direct
any person present in Court to write any words or figures for the
purpose of enabling the Court to compare the words or figures so
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S.A.No.470 of 2005such person.”
It mandates the procedures to be followed in comparison of signatures in
a case of forgery or disputing the signatures. The courts below concluded
by considering the findings of the judgment passed by the criminal court,
which was marked as Ex.A.11, that the plaintiff was impersonated and
also the plaintiff’s signatures were forged, without following the
procedures as contemplated under Section 73 of the Indian Evidence Act.
The courts below without sending the disputed signatures along with the
admitted signatures for scientific comparison and obtain opinion of experts
and only thereafter can form an opinion with regards to the issue of
signatures. On perusal of Ex.A.11, the criminal court also did not follow
the procedures as contemplated under Section 73 of the Indian Evidence
Act. The criminal court did not obtain any specific signature from the
plaintiff and had taken only photographs of the signatures of the plaintiff
taken by the Investigation Officer from the court records and sent it for
expert opinion. In this regard, the learned counsel for the second
defendant relied upon the judgment in the case of State of Orissa Vs.
Rajendra Prasad Bharadia reported in 1994 SCC (5) 146, wherein it
is held as follows:
19.A subsequent writing of an accused taken under the
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S.A.No.470 of 2005
direction of the court is in substance a specimen writing obtained
for comparison of the disputed writing with it. Though, Section 73
does not specifically say as to who could make such a comparison
but reading Section 73 as a whole, it is obvious that it is the Court
which has to make the comparison and it may form the opinion
itself by comparing the disputed and the admitted writings or seek
the assistance of an expert, to put before the Court all the material,
together with reasons, which induce the expert to come to a
conclusion that the disputed and the admitted writings are of one
and the same author so that the court may form its own opinion by
its own assessment of the report of the expert based on the data
furnished by the expert. The function of a handwriting expert is to
opine after a scientific comparison of the disputed writing with the
admitted (specimen) writing with regard to the points of similarity
and dissimilarity in the two sets of writings.
20.The second paragraph of Section 73 (supra) enables the
court to direct any person present before it to give his specimen
writing “for the purpose of enabling the court to compare” such
writings with writings alleged to have been written by such person.
The obvious implication of the words “for the purpose of enabling
the court to compare” is that there is some proceeding pending
before the court in which or as a consequence of which it is
necessary for the court to compare such writings. The direction is
therefore required to be given for the purpose of “enabling the
court to compare” and not for the purpose of enabling an
investigating or a prosecuting agency to obtain and produce as
evidence in the case the specimen writings for their ultimate
comparison with the disputed writings. Where the case is still under
investigation and no proceedings are pending in any court in which
it might be necessary to compare the two writings, the person
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S.A.No.470 of 2005
(accused) cannot be compelled to give his specimen writings. The
language of Section 73 does not permit any court to give a direction
to an accused to give his specimen writing for comparison in a
proceeding which may subsequently be instituted in some other
competent court. Section 73 of the Evidence Act in our opinion
cannot be made use of for collecting specimen writings during the
investigation and recourse to it can be had only when the enquiry
or the trial court before which proceedings are pending requires the
writing for the purpose of ‘enabling it to compare’ the same. A court
holding an enquiry under the Code of Criminal Procedure is indeed
entitled under Section 73 of the Evidence Act to direct an accused
person appearing before it to give his specimen handwriting to
enable the court by which he may be subsequently tried to
compare it with the disputed writings. Therefore, in our opinion the
court which can issue a direction to the person to give his specimen
writing can either by the court holding the enquiry under the Code
of Criminal Procedure or the court trying the accused person with a
view to enable it to compare the specimen writings with the
writings alleged to have been written by such a person. A court
which is not holding an enquiry under the Code of Criminal
Procedure or conducting the trial is not permitted, on the plain
language of Section 73 of the Evidence Act, to issue any direction
of the nature contained in the second paragraph of Section 73 of
the Evidence Act. The words “any person present in the court” in
Section 73 has a reference only to such persons who are parties to
a cause pending before the court and in a given case may even
include the witnesses in the said cause but where there is no cause
pending before the court for its determination, the question of
obtaining for the purposes of comparison of the handwriting of a
person may not arise at all and therefore, the provisions of Section
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73 of the Evidence Act would have no application.
21.The specimen writings in the instant case of appellant
Sukhdev Paul were taken under the directions of Shri S.P. Garg,
Tehsildar-Executive Magistrate, PW 13. No enquiry or trial was
admittedly pending in the Court of the Tehsildar-Executive
Magistrate. The enquiry and trial in this case were pending under
TADA before the Designated Court only. The direction given by the
Tehsildar-Executive Magistrate Shri S.P. Garg to the appellant
Sukhdev Paul to give his specimen writing was clearly unwarranted
and not contemplated or envisaged by Section 73 of the Evidence
Act. The prosecution has not disclosed as to at what stage of
investigation or enquiry or trial was Sukhdev Paul appellant
produced before the Executive Magistrate PW 13 to take the
specimen writings of the appellant and why the specimen writings
were obtained under directions of PW 13 and not of the Designated
Court. It is a mystery as to how the specimen writings required to
be used at the trial against the appellant were directed to be taken
by PW 13, who was not enquiring or trying the case. To a specific
question during his cross- examination, PW 13 admitted at the trial,
that when he had issued the direction to the appellant there was no
document on his file which could go to show as to under whose
orders the appellant had been sent to him for taking his specimen
handwriting. The manner in which the specimen writing of Sukhdev
Paul was taken is totally objectionable and against the provisions of
Section 73 of the Evidence Act. The Executive Magistrate PW 13
appears to have been too obliging and did not even care to
examine the provisions of law before issuing the direction to the
appellant. The argument of the learned counsel for the State that
since no objection was raised by the appellant when he was called
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S.A.No.470 of 2005
upon to give his specimen writing by PW 13 therefore he cannot be
permitted to make a grievance now is only an argument of despair
and the silence of the appellant, who admittedly on that day, was
not even represented by an advocate, cannot certainly clothe PW
13 with any jurisdiction to issue the directions as envisaged by
Section 73 of the Evidence Act. The specimen writing of Sukhdev
Paul could not, therefore, be made use of during the trial and the
report of the handwriting expert, when considered in the light of
the foregoing discussion, is rendered of no consequence at all and
cannot be used against Sukhdev Paul appellant to connect him with
the crime.
Further the courts below in comparing the signatures by themselves, are
also totally violation of the mandatory procedures contemplated under
Indian Evidence Act and the rules laid down by the Hon’ble Supreme Court
of India. Both the courts below have done the comparison of signatures
by themselves only with the signatures of the plaintiff available in the
plaint, vakalatnama and the disputed signatures appear in the sale deed,
namely Ex.B.4. It is completely against the principles of law laid down
under Section 73 of the Indian Evidence Act.
24. The courts below considered the findings of the criminal court
judgment, which was marked as Ex.A.11 and decided that the plaintiff did
not sign Ex.B.4 sale deed and she was impersonated by the first
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defendant. In this regard, the learned counsel for the second defendant
relied upon the following judgments:
(i) Seth Ramdayal Jat Vs. Laxmi Prasad reported in (2009) 11 SCC
545, wherein it is held that civil proceedings cannot be determined on the
basis of a judgment of Criminal Court.
(ii) Vishnu Dutt Sharma Vs. Daya Sapra (SMT) reported in (2009)
13 SCC 729, Wherein it is held that the judgment of a criminal court in a
civil proceeding will only have limited application, viz., inter alia, for the
purpose as to who was the accused and what was the result of the
criminal proceedings.
(iii) Syed Askari Hadi Ali Augustine Imam and another Vs. State
(Delhi Administration) and another reported in (2009) 5 SCC 528, where
it is held that axiomatically, if judgment of a civil court is not binding on a
criminal court, a judgment of a criminal court will certainly not be binding
on a civil court
In the above judgments, the Hon’ble Supreme Court of India repeatedly
held that the findings given in a criminal proceedings will not be binding in
civil proceedings. The judgment and finding of a criminal court shall not
be admissible in a civil case. The civil court can decide the case only on
the basis of the evidences adduced before the civil court. This principle is
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S.A.No.470 of 2005
well settled in the above judgments by the Hon’ble Supreme Court of
India. In the case on hand, as discussed above, the courts below
concluded that Ex.B.4 was not executed by the plaintiff and she was
impersonated and her signatures were forged by the first defendant. Only
based on the criminal court judgment, which was marked as Ex.A.11, both
the courts below without considering the above settled principles of law,
decreed the suit in favour of the plaintiff.
25. Though, both the courts below concurrently held against the
second defendant, there are exceptions to interfere with the concurrent
findings. In this regard, it is relevant to rely upon the judgment in the
case of Ammasai Gounder Vs. Pavayammal and others reported in
2020 (1) CTC 205, wherein it is held as follows:
“… The general rule is that the High Court will not interfere
with the concurrent findings of the Courts below. Some of the well-
recognised exceptions are, where,-
(1) the Courts below have ignored material evidence or
acted on to evidence;
(2) the Courts have drawn wrong inferences from the proved
facts by applying the law erroneously; or
(3) the Courts have wrongly cast the burden of proof.”In view of the above discussion, it is found that both the courts below did
not apply law on the settled principles related thereto and also ignored
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S.A.No.470 of 2005material evidences and testimonies adduced by the second defendant.
Therefore, this court constrains to interfere with the findings of the courts
below, since the findings of the courts below are perverse and against the
evidence on record. Accordingly, the substantial questions of law and the
additional substantial questions of law formulated by this Court are
answered against the plaintiff and in favour of the second defendant.
26. In fine, the second appeal is allowed and the judgment and
decree of both the courts below are set aside, and resultanty, the suit filed
by the plaintiff in O.S.No.4992 of 1993 on the file of III Assistant Judge,
City Civil Court, Chennai is dismissed, with costs. Consequently, connected
miscellaneous petition is closed.
05.03.2020
Index : Yes/No
Internet : Yes/No
Speaking order/Non-speaking order
lok
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S.A.No.470 of 2005
G.K.ILANTHIRAIYAN, J.
lok
To
1. The I Additional Judge,
City Civil Court, Chennai
2. The III Assistant Judge,
City Civil Court, Chennai.
3. The Section Officer,
V.R. Section,
Madras High Court,
Chennai.
S.A.No.470 of 2005
05.03.2020
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